Though in the minds of many people estate planning is a financial matter, there is a health care component to the process as well. The dialogue that we heard around the time that the health care reform bill was being voted on shed some light on the legal intricacies surrounding incapacitation and medical decisions. The way to protect yourself legally should you reach the point where you cannot make your own medical decisions is to include a durable medical power of attorney in your estate plan. With this document you appoint an agent to act in your behalf and make health care decisions in the event of your incapacitation.
However, there are instances when health care providers will not talk about your case with your chosen agent due to the privacy provisions set forth in the Health Insurance Portability and Accountability Act. This law was first enacted in 1996 for the ostensible purpose of requiring medical insurance companies and health care providers from divulging your medical records to anyone. But the way that some hospitals interpret the law can sometimes result in doctors being unwilling to discuss the details of your case with your family and even the health care agent that you named when you executed your durable medical power of attorney.
The way to make sure that your wishes are carried out in this regard is to include a HIPAA release amid or alongside your durable medical power of attorney. When the health care provider is presented with the release the perceived legal impediment to communication is removed and he or she can than interact freely with your health care proxy. Many people choose to add other family members and/or friends to the HIPAA in addition to the proxy so that they too can discuss your condition with your doctors.